Friday, March 31, 2006

At the most obvious level, he's going to try to lead my party. That means I'm going to have to read some of his stuff.

As to the speech, it starts with the obligatory praise of the land, with examples chosen carefully from each time zone, and then segues into the archetypical immigrant experience of Tsarist nobility marrying into the Ontarian haute bourgeoisie. [/unfair and hypocritical snark]

Overall, I liked the domestic part of the speech, but the international stuff makes me nervous.

The most problematic theme is the one Ignatieff starts with: "ask not what you can do for your country; ask what your country can do for the world." It is especially troubling from Ignatieff. As a journalist/professor, his theme was always that the "West" should use its infinite power to rescue everyone from the consequences of the conflicts endemic to the human condition. He ignored completely the limits of the "West's" power, limits that Canada faces in spades. His lack of sympathy for particularism led him to ignore what armies, and military force, are made from.

Ignatieff shows a lot of finesse on Quebec. He is dead right that the real asymmetry that needs to be conceded is an asymmetry of sentiment. Quebec will mean something to Quebecois that Ontario will never mean to Ontarians, whether or not the Quebec government has any powers that the Ontario government does not.

There are a few false notes. He talks about Quebec being part of the Canadian solution "from the Quiet Revolution onwards." The implicit denigration of traditional Quebec is gratting. In fact, Quebec needs to rethink some of the legacies of the Quiet Revolution, particularly the way it created an interlocking state-labour-capital anti-competitive elite, and there is some evidence that it is starting to do so. The embarrassment a single generation had for Quebec prior to 1962 should not deprive an entire people of its heritage.

And then there is the obligatory reference to Quebec not assenting to the constitutional deal in 1981, although each individual part of that deal turns out to be as popular in Quebec as anywhere else. Iggy is well-placed to point out that we expect the Tutsis and Hutus to "get over" a massive genocide in 1994, so harping on the non-unanimous resolution of a many-year constitutional negotiation a generation ago is just demeaning.

Ignatieff emphasizes exactly the right things on the role of the federal government, and he has made some progress over traditional Liberal dogma just by recognizing that that role is a limited one.

[The federal government] is charged with the defense of the country, the protection of its borders , the development of national infrastructure and a national economic market, as well as safeguarding the rights of citizenship. That all Canadians hold in common. Without respect for these federal domains, we cannot have a country.

A common border, a common market and a common citizenship.

The common border is a crucial one, and the harder-headed American milieu may make Ignatieff improve on traditional Liberalism here.

Personally, I don't think direct federal regulation of securities, for example, is necessary. But there should be federal laws requiring each provincial security regulator to respect the certification provided by the others (and similar laws for professional qualifications, pensions, etc., etc.) We can have the benefits of regulatory competition and inter-operability.

He makes good sense on equalization. It needs to be simplified, and it needs to be based on population.

Rhetorically, I think it is wrong to equate the situation of aboriginal Canadians, and the mutual obligations we need to work through, with the issues facing voluntary "visible minority" immigrants.

Finally, I don't think you can overestimate the importance of experience. Ignatieff is obviously a talented, charismatic guy, but there is still some dues-paying that has to be done.

Update:Red Tory defends Ignatieff from the charge of being more ex-pat than man.

Tuesday, March 28, 2006

I received an e-mail from a reader of this site (OK, the reader of this site) who objected to my reliance on Foucault in trying to define our place among the nations. Sadly, despite its kind words about my prose style and its author's own way with the mot juste, it was too suffused with philistine anti-intellectualism and hurtful Francophobia to be quoted at any length here. The Pithlord does not want to risk his new relationship with Google Ads through a sentimental attachment to old friendships!

But (and you will have to trust me on this) the e-mail raised a few interesting points. First, when speaking of British North America's expectations about the biological assimilation of the French and aboriginal peoples, it is important not to forget how damn sexy the Victorian Brits thought most of the people they were colonizing were. (In my defence, I did allude to the Northern European view that miscegenation with Indians was distinctly unhorrible.)

Second, my correspondent suggests Old Doug Johnson may be a bit of a sloganeering chump, which seems to be true. Although I do confess to a soft spot for the bats**t crazy unreconstructed 68ers, that would really go away if they kill Aldo Moro or Pierre Laporte again.

But my correspondent's most important point was to question Foucault's S&M assumption that the relationship between a People and its Others has to be one of sumbission and domination. Why can't our relationship with the Other be one of polite interest, or exotic fascination or even pure indifference? My correspondent suspects that Foucault was being a Euro-weenie. We can have a strong sense of who we are without harbouring ill will against anyone else. (My correspondent went on to say that Canadians do have a strong sense of who we are, which, since it goes against common sense and conventional wisdom, is probably true.)

I'm not a remedial writing instructor to the post-structuralists, so I'm not going to guess what Foucault would have said in response, but I will hazard my own attempt, which I think he'd agree with.

It may or may not be true that a distinct people can happily subsist without threatening or feeling threatened, just as feminine hygeine products may not really be necessary. But just as the manufacturer of the deodorant needs the "not quite fresh feeling", so too a biopolitical state needs the people to face an existential threat. The state, like the capitalist, has something to sell. It needs to make you realize you had needs you didn't realize you had.

And Foucault actually gives the biopolitical state some credit: it emerged when the scientific revolution showed that some pretty concrete threats could be dealt with: enclosed sewers, vaccination, actuarially-assessed insurance, and the Queen's Navy all really worked to allow non-Malthusian population growth. And they all worked by defining a threat, and finding a science-based solution.

And by the time of the Great War, each of the major biopolitical states represented quite genuine threats to the others. And each found a science-based solution to the threat, and the rest was the catastrophe that nearly brought down the first, great bourgeois civilization. It certainly brought down the British Empire, and with it British North America, even though they hobbled along for a few more decades.

Now, it may be said that Foucault, in his snobby Nietzschean way, fails to credit this development with its great achievement in allowing uncounted ordinary lives to unfold without the pre-industrial Malthusian horrorshow. Certainly, Foucault is uninterested in pointing out how this all could have worked out better. That would be some pretty uncool reformism, and uncool reformism just was not his bag.

But pointing out paradoxes was. And Foucault pointed out the paradox that the modern state has become increasingly squeamish about executing even serial killers, while being invested in a military strategy of massive retaliation against civilian populations, which would have horrified the Rennaissance Popes. Both developments fit with the idea that the state's job is to nurture the growth and survival of a people, seen a bit like a slightly delicate houseplant.

For the English Canadian "people", the threat the state has tended to emphasize is a particulalry ethereal threat, the threat to "identity." The threat is particulalry insidious, in that the identity has never (or at least not since the collapse of the Imperial ideal -- and we certainly don't want to go back to that) been securely established in the first place.

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Monday, March 27, 2006

In my search for something high-falutin' to say about our current Canadian dilemmas, I have been re-reading George Grant. He doesn't disappoint, and is high-falutin enough on the subject to turn me off it for a while. But before I get into that, I had a thought about conservative intellectuals generally.

Conservatives rightly (and we now know, scientifically) think of human nature as essentially fixed through time. And they also (again I think rightly) think of the good as eternal and trans-historical. Finally, they understand that part of any plausible idea of the good is loyalty to one's own. A person whose virtues could all be deduced from utilitarian principle couldn't even be normal, let alone good.

The trouble is that one's own is inherently fleeting, and bound by time and space. The temptation is to try to grab hold of something --Platonic philosophy, patristic Christianity -- that can plausibly be both one's own and eternal.

Neoconservatives must mean many things by "cultural relativism." Some of those things are indeed shallow or nihilistic. But the basic recognition that what is one's own can never be absolute, which is perfectly compatible with love for it anyway, is wise. Ratzinger, a very subtle man, seems to think that the choice is between nihilism and the identification of one tradition as the tradition of the absolute. But the absolute relativizes everything, even its own traditions.

One of the good things about Canada is that it is a bit difficult to take seriously, let alone identify with the absolute.

Saturday, March 25, 2006

Ah, the federal election of 2006. Bliss it was to be a political junkie, but to be a law geek was the very heaven.

From an ordinary poli-junkie's perspective, it was a great election, what with the multi-party alliances of convenience, the self-immolation of the Earnscliffe gang and the return of a national party. But for a con-law geek in the midst of ordinary politicos, it was even better. Should we get rid of the notwithstanding clause? Entrench property rights? Abolish the Senate? The law geek could pontificate with an air of professional authority, and, it must be confessed, the Pithlord did not always pass up the opportunity.

Of course, to cultivate the air of a true cognoscentus, it was important to say that all of these debates missed the real point, and that moves had been made in the game of judicial power that could not be undone by the remedies of the politicians. And, best of all, in the winter of 2005, it was true.

A few days before Christmas, the British Columbia Court of Appeal ruled that the Social Services Tax could not apply to legal bills. Over the dissent of the fearsome Mary Southin, three members of the Court decided that taxes on legal bills offended an unwritten constitutional right to legal representation. The majority discerned from the sounds of constitutional silence the command that all the world might be taxed, but not the transactions between a lawyer and her client.

No one likes taxes, and we have gotten used to courts striking down legislation, but the grounds used in Christie should still cause a self-governing people a bit of concern. Striking down a tax on legal services is not going to benefit the poor: on the contrary, it shifts taxes elsewhere, which will inevitably be regressive. Unwritten principles have unwritten boundaries. The Charter may not constrain the courts very much, but at least they have to go through the motions of an interpretative exercise, and the ability of the government to put forward evidence under section 1, and ultimately to override under section 33, keep judicial review a subordinate part of our governing structure.

The BC Court relied on the precedent of one of the Lamer SCC's most questionable decisions, the Provincial Court Judges' Reference. There, for the first time in 130 years, a Canadian court struck down a statute on the basis that it conflicted with "unwritten constitutional principles," and required the legislatures' to engage in a kind of interest arbitration for the compensation of provincial judges.

It would be a mistake to attack this decision on the basis that there are no unwritten principles in the Canadian constitution. There clearly are. But the highest of these principles is that Parliament is supreme, and while the English courts could review executive action to make sure it complies with the common law and statutory authority, they could not do the same for legislation. If an Act of Parliament was properly passed, then the courts had to give effect to it.

In his dissent in the Judge's Reference, Gerard La Forest had a great deal of fun with Lamer's ahistorical conception of judicial independence. He also pointed out that judges deciding on their colleagues' compensation were in causa sui. But the biggest problem with the decision is that it leaves a hole in the Constitution wide enough to force any judicial agenda through.

The BC Courts are stillworking out the consequences of the decision, and it will likely go to the Supreme Court of Canada. My general impression of the McLachlin court is that it wants to consolidate the craziness of the Lamer era, but, obviously, the surprising intervention into health policy last year stands as a counter-example. As the CBC likes to say, what the impact will be on democracy and the rule of law in Canada, "remains to be seen."

What cannot help but give public choice theorists aid and comfort, though, is that in 140 years, two decisions invoke an "unwritten" constitutional principle to strike down legislation, and both of them directly improve the incomes of persons with law degrees.

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Foucault is often remembered as one of a wave of fashionable Parisian maitre-penseurs,* but as Old Doug reminds me, he had some smart cookie moments. In particular, his discussion of "biopolitics" in History of Sexuality, vol. 1 (I never read the other piece Old Doug refers to) is well worth the time of anyone who wants to come to grips with our contemporary Canadian dilemma.

Basically, Foucault's story is that the modern territorial nation-state is inevitably "racial" in that it must define and protect the health and unity of its "people" against external and internal threats (what Carl Schmitt would call the "foe"). In this light, fascism, eugenics and all the other horrors of twentieth century illiberalism are just an extreme version of what every immigration and public health official is always up to.

A full-blooded "biopolitics" is what American paleoconservatives admire about Europe. To be French, or English, is not to have a particular ideology, but to be a particular type of person, bred as such over centuries by the institutions that do that sort of thing.

Against this, I suspect somebody like Old Doug is going to rely on St. Paul's supersession of biological categories (Jew and Greek; male and female) in favour of a militant ideology (Christianity, Islam, Communism, maybe neo-conservatism). Of course, there are problems with this solution too: it doesn't divide Jews from Greeks, but it sure divides sheep from goats, and sometimes pretty bloodily. Lineage and particularist culture no longer matter, but propositions sure do.

Old Doug specifically included Canada among the inherently racist secular states, and someone in the comments thread rises to its defence. The defence is a bit simple minded ("we're not racist, we're multicultural"), but appreciated.

But what is the Canadian state's relationship to biopolitics? As Chief Justice Lamer asked, "Are Canadians a people?"

The original concept was an unequal accommodation between two races/peoples. The other peoples inhabiting the territorial space were to be subject to a short period of wardship, and then assimilated both biologically and culturally (for whatever reason, northern Europeans never had the fear of miscegenation with Indians that they did with blacks). Each people would control its own matters of private and local interest, and have its own private law, but it would be under the British Crown.

So the two levels of government were both biopolitical, but in the case of Quebec, there was to be a (subordinate) state that could favour the (subordinate, but still accommodated) race. The other states would play their role within the larger British empire of promoting Britishness as a global master race, no longer confined to a rainy island.

Imperial institutions would make sure that the British Canadians didn't abuse the French Canadians, just as Dominion institutions were supposed to make sure that settlers didn't treat the natives too egregiously. The Judicial Committe played this role pretty well, forging a genuinely federal multi-ethnic state in the process.

Of course, non-British ethnic elements came into the country, particularly in the West. Some of them -- Protestant Northern Europeans -- were expected to assimilate biologically and culturally into the predominately British population. Others were not, but as long as the British Empire was around, there could easily be a multi-racial order that nonetheless had a clear hierarchy.

Canada's biopolitical problem -- still not solved -- emerged when the British Empire left the picture. The sentimental tie became more and more annoying to the canadiens, especially when they were expected to die for it, and after World War II, it no longer had much purchase with English-speakers either. And then the Empire collapsed. So we are left with modern state institutions without their original biopolitical mission.

Except for Quebec, of course, the biopolitical mission was more obvious than ever. The path to creating a "normal state" which would protect the now Quebecois people from internal and external threats, understood in classically epidemiological terms, was open. Simultaneously, Catholicism lost its purchase. Language and nation were all that was left.

So what about Trudeau? Did he really come up with a post-biopolitical strategy for giving the nation state a mission? I would say "no", but the biopolitics are a bit more complicated.

Trudeau offered British Canada (including those lineages that had more or less assimilated into it) a deal. Part of it was a propositional, rather than ethnic identity (hence the Charter), but this propositional identity was pretty weak tea by St. Paul or Lenin's standards. The liberal propositionalism would cohere loosely with ethnic brokerage, mediated by the Liberal Party of Canada. In return, Trudeau would be firm in suppressing the straightforward biopolitics of Quebec.

Not that this model means leaving biopolitics altogether. The state still decides what minorities to cultivate, and tries to choose what Amy Chua calls "market-dominant minorities." There are lots of them around the world, and Trudeau-era immigration policy was designed to seek them out.

At this point, it is hard not to get normative. If biopolitics is the kind of thing whose ultimate expression is fascist, then propositionalism would seem to be the better bet. But the ultimate expression of propositionalism is the Inquisition or maybe the Khmer Rouge, so it might just be more important to keep our heads and our sense of moral limits wherever we go.

We remember Parizeau's drunken Kinsley-style gaffe about "money and the ethnic vote." But we forget Trudeau's "Where's Biafra?" quip, his willingness to sacrifice an entire ethnic group to the need of a multi-ethnic state to stay together. There is something about Trudeau's militant cosmopolitanism that grates, even a generation later.

But if we accept that Canada is necessarily multi-racial (in all senses of the word), then are we stuck? Not necessarily propositionalism, but propositionalism if necessary?

Diagram of Panopticon in public domain. Picture of Trudeau at the 1968 Liberal convention copyright National Archives of Canada

Or to put it more bluntly, the Jews got Bush to do stuff that helps Israel, but hurts America.

As Drezner notes, this is the kind of subject that makes students tense. But, of course, it is pretty much received wisdom in most of the world, so it hardly makes sense for Americans to duck the issue on political correctness grounds.

If we look at the "Israel Lobby" as an example of a broader species of international ethnic solidarity and its influence on the foreign policy of multiethnic states, we at least achieve a more comfortable level of abstraction. Strict IR Realism, by employing the reification of "state interests," rules out the possibility that the ethnic mix of a country might influence its foreign relations.

According to Edwin O'Connor's mayor in The Last Hurrah, there were only two things an aspiring municipal politician in mid-century Boston needed to know: first, that Trieste belongs to Italy, and second, that all Ireland must be free.

Clearly, Canada, viewed as a unit, got itself into lots of conflicts that make no sense from a Realist perspective because of the ethnic loyalties of its British population. The canadiens understandably objected to this. Since the natural federal allies of canadien nationalists tended to be reactionary old stock Brits, this repeatedly led to the breakdown of the federal blue coalition. This might happen again over Afghanistan.

Of course, to Anglos at the time of the Boer war, it made no sense to talk about Canada's international interests as distinct from the Empire's as a whole. Arguably, it still doesn't make sense to pro-American Canadians today. Even anti-American Canadians tend to define their international views as if they were part of a domestic opposition in the US. Canadians are most comfortable talking about "our" interests in trade disputes, where it is, however, least appropriate: American home buyers ought to like $0.25 per metre stumpage rates, and BC taxpayers ought to dislike them.

Realism has an undeserved reputation for mental toughness, but it depends on a pretty sentimental vision of a common national interest. It's good to see that Mearshmier and Walt are beginning to think about this, although maybe they should have taken a wider perspective.

Added: thanks to Scott Lemieux for the link. Blogging is a lot harder than being a pest in somebody else's comment box.

Still, with the Court nothing is simple. Binnie still insists that "much of the Court’s work (particularly under the Charter) required the development of a general analytical framework which necessarily went beyond what was essential for the disposition of the particular case. In those circumstances, the Court nevertheless intended that effect be given to the broader analysis."

Binnie gives the example of Chief Justice Dickson (photograph from Supreme Court of Canada collection, credit to Michael Bedford)'s decision in R. v. Oakes. Oakes set out the "test" for a "reasonable limit" under section 1 of the Charter.

Narrowly,Oakes decided that the government could not require somebody found with a large amount of drugs to prove that they weren't intending to traffick. But the larger doctrine Dickson lays down is about the hoops the government has to go through once somebody shows a presumptive violation of a Charter right. First, it has to show that the law it enacted fulfilled a "pressing and substantial objective." Second, it has to show that the law is "rationally connected" to the objective. Third (and this is where the action almost always is), the government has to show that it "minimally impaired" the right, i.e., it couldn't have achieved what it was trying to do in a way less costly to the applicant's Charter rights. Finally, it has to show proportionality between the beneficial and detrimental effects of the regulation.

Because Dickson loved three-part tests, he divides his test into two stages, with the second one consisting of three parts. You had to be there.

Lawyers are familiar with a number of other "general analytical framework" cases. There is the two part Anns test for negligence, the three part (by Dickson) Pettkus test for unjust enrichment, and the godawful "pragmatic and functional" test for judicial review of administrative decision making (man, if you gotta ask, you don't want to know).

Binnie doesn't want lower courts ignoring this broad, analytical statements. At their best, these tests are just directions to lower courts to balance interests. Sometimes, they create endless verbal formulae without making the law any more determinate. But they actually do positive damage when they are held up as "new law", which overturns the previous "categorical" approach. Typically, this proves to be destabilizing and unworkable, and the Court eventually releases a judgment saying they didn't mean to overturn existing law: for the Anns test, see Cooper v. Hobart; for Pettkus, see Peel. But the Court keeps purporting to overrule all the old, "categorical" cases in particular areas of the law, most recently and importantly on hearsay and statutory interpretation.

To return to Oakes, the reality is that Dickson's statements in the original case give a distorted sense of what the actual law of section 1 really is. For instance, Dickson claimed that the government would have to come up with "clear and convincing" proof (a standard between the normal civil balance of probabilities and criminal reasonable doubt) about both its objective and whether it met the minimal impairment test. However, since then, hardly any "objectives" set out by the government have been rejected, and in most policy areas, the courts recognize the reality that social science doesn't deliver the sort of proof Dickson seemed to be calling for. There are lots of reasons to criticize the Oakes test, which seems to me like a simplistic form of cost-benefit analysis. The reality, though, is that it is sufficiently flexible that it neither poses much of a problem for further development, nor provides much guidance.

Stare decisis should be limited to the actual decisions. Courts that think they have found a unifying principle typically have to retreat later on, and have abandoned the relatively firm ground of case-by-case adjudication for abstract quasi-statutory language.

My initial intention with this blog was to comment on obscure legal arcana. So I'm pleased on a number of levels that the Supreme Court of Canada in December released its decision in R. v. Henry.

In the broader public sphere, there is a lot of talk about judicial activism, and excessive judicial power. I think the last election shows that the public is worried about too much power in the hands of judges, despite the overwhelming support Canadians have for the Charter.

Not suprisingly, there is relatively little talk about the ways the legal process can confine the power of judges. The issues are a bit technical for a general audience, and the legal profession is highly invested in expanding judicial power. But a number of traditional process doctrines about standing, pleadings, evidence and the scope of appellate review helped confine what judges could do.

The problem is that the contours of these doctrines are in the hands of the judiciary itself. That isn't to say that every judge in every case wanted to expand the scope of judicial power: it is easy to come up with counter-examples. But the pressure on the judicial system to take over more and more of social life has been pretty relentless since the 1970s, and there is still relatively little in the way of organized counter-pressure.

Anyway, one of the powerful constraints on judicial power, particularly the power of final appellate bodies, was the old distinction between the holding (ratio decedendi) and the comments (obiter dicta) in the case. The holding consists of the minimum necessary norms to decide the issue between the parties, while the dicta are all the other things a judge may be minded to say.

Traditionally, just because the majority of a court said something didn't make it law. Only the holding/ratio was binding on future judges. Although this sounds incredibly boring and technical, along with standing rules, and being confined to pleadings and evidence, it held judicial tyranny at bay. A majority of judges (or their clerks) couldn't make a proposition the law just by saying it -- it had to be necessary to decide a real case between real people. It also fit with what we know about the cognitive structure of normative intuition -- people are much better at knowing what should be done in a particular case then in theorizing why.

The holding/obiter distinction was apparently buried in R. v. Sellars, [1980] 1 SCR 527. The headnote said that lower courts now had to follow anything higher courts said. This was just before the Charter era began, and soon we had an orgy of undigested political theory and advocacy-based "legal scholarship" in Supreme Court of Canada judgments.

The good news is that Henry has revived the distinction. I'll get to the bad news in another post.

Unlike Iraq, I supported the war in Afghanistan and Canada's participation in it. The main difference was that the Taliban really was providing state support to Al Qaeda. The secondary difference was that it was perfectly reasonable to put Western technology in the balance between the Northern Alliance and the Taliban.

Over the past 4 years, much like almost everyone else, I stopped paying much attention to Afghanistan, even though it is easily Canada's most important overseas military commitment since Korea.

Since I supported the intervention in the first place, I am not particularly sympathetic to the NDP/BQ's current opposition. I'm more sympathetic to the Liberals' disarray and confusion on the subject. Certainly our men and women over there need better moral and material support from us latte-swilling urbanites.

Harper deserves credit for giving this issue high priority, and good on him for going. But I want to register some concern about his rhetoric, which is (consciously) modelled on Bush's "stay the course" rhetoric about Iraq.

Harper's response to NDP calls for a debate -- that it would give aid and comfort to the enemy -- was unacceptable in a democracy. But it is the phrase "cut and run" that really makes me worry. The right way to fight one of these wars is to define limited objectives, and to define exit as victory. After all, the Taliban are no longer in power. If they get into power again, we can always overthrow them again. We are not going to be providing order in Afghanistan in the long term.

For a Canadian PM to define leaving as cutting and running is to cretate precisely the hostage to fortune Bush has given in Iraq.